Gay Kenyans sense they may be on the brink of a historic legal triumph

By Max Bearak and Rael Ombuor for The Washington Post

NAIROBI — Faced with police shakedowns and abuse, rejection from religious conservatives and rampant discrimination, Kenyan LGBT rights activists are challenging provisions of this former British colony’s Victorian-era penal code that implicitly outlaw gay sex.

In a move that could spawn copycat tactics across Africa and beyond, three Kenyan LGBT rights groups have petitioned a court in Nairobi to scrap those legal clauses and grant LGBT Kenyans the same rights to privacy, equality and dignity as other Kenyans. If the groups succeed, Kenya would be the second country in Africa — after South Africa — to do so.

Court hearings in February and March pitted ardent activists against those who believe that Christianity, the majority faith here, is more in line with inherent local values than what they see as a pernicious Western import: homosexuality.

The latter group says it represents the values not only of most Kenyans but also of most Africans, and it has funded its own polls to provide proof, using the surveys to argue that Kenya’s courts should respect the “moral majority.” In this view, which is often echoed by prominent government officials, gay sex is unnatural, un-African and unconstitutional in a country that is 83 percent Christian and that cites God in its law and national anthem.

The LGBT rights groups have argued that the case is about basic human rights.

“There are times when the court has to be the trailblazer and teach society,” said Paul Muite, a renowned lawyer representing the National Gay and Lesbian Human Rights Commission. “This is one of those times.”

At its core, the dispute stems from what was known in British law as the “sodomy offense,” which criminalized “carnal knowledge of any person against the order of nature.” The prohibition has bedeviled LGBT people across the former British Empire for more than a century.

Like most former British colonies, Kenya has retained portions of the crown’s Victorian-era ­penal code, including vaguely worded clauses against gay sex. The legal verbiage was coined in 1860 for Britain’s colony in India and tweaked in 1899 in Queensland, Australia, to encompass all kinds of “indecent practices between males.” It was then reproduced across the seven seas.

In fact, more than half of the nearly 80 countries in the world that criminalize gay sex inherited those laws from the British Empire. Those same laws were overturned in the United Kingdom between 1967 and 1982.

The presiding judges in the Kenyan case have adjourned until April 26, when they will announce a date to reveal their judgment. Muite said that even if the judges rule for the LGBT activists, two subsequent rounds of appeals, ending in the Supreme Court, could last a year or more.

The mood in Kenya’s LGBT community is anxious but buoyant — perhaps nowhere more so than among those who are routinely singled out as offenders: male sex workers. Although few are sent to jail for violating Section 162, as the law banning gay sex is known, it is commonly used as a pretext by police for harassment and worse.

Some male sex workers said in interviews that their peers have been raped in police stations and told it was done to “correct us.” Before a court ruling in March, police here could force those suspected of having had gay sex to undergo anal examinations. But most commonly, the sex workers said, the law is used to extort money from them.

On a recent night in downtown Nairobi, a police officer collected his weekly bribe from a group of male sex workers gathered in a sweaty drinking hole they call “the Sauna.”

The men scrape out a living by propositioning mostly closeted bargoers and the occasional expat. Substance abuse is rife. The Sauna’s owner, who gave her name only as Mama Lucy, does a brisk trade in $2 bottles of Chrome Vodka, but other vices are no more than a call away. Despite the bribes — and occasional drunken brawls — it is a place of refuge filled with music, shared drinks, selfie poses and wide grins.

Nearly every face in the Sauna, though, bore scars from encounters with police, angry neighbors or disapproving family members. Section 162 is often the justification for private acts of violence.

“I’m not tired of being beaten,” said Mombo Ngua, 29, who goes by the nickname Mantully. “Freedom is worth that, for sure.”

Mantully’s scar, which bisects his right eyebrow, came from when a neighbor falsely accused him of raping his 4-year-old son.

“The police punched me before even asking what happened. I’m lucky to still have my eye,” he said. “But I’m used to police stations now. You can say I’m a member there.”

Others at the Sauna are bothered less by the threat of physical violence than the indignity of discrimination.

“This ‘against the order of nature’ thing is ridiculous,” said a sex worker who gave his name as Simon Flavor, and who claims to have introduced flavored condoms to Kenya.

As the sex workers left the Sauna for “hot spots” along Tom Mboya Street where they pick up customers, many lamented that same-sex love in Kenya seems impossible. Life is a continuous cycle of extortion by police and blackmail by customers who threaten them with the law to avoid paying. Worse still is the specter of HIV. Many gay men in Kenya do not get tested out of fear that they will be prosecuted.

“When we win this case, so many men will finally come out,” Mantully said. “And they will get tested. It is not about decriminalizing this or that. It is about survival.”

In some ways, Kenya is more tolerant of LGBT rights than neighboring countries. Uganda, for instance, gained international notoriety for a proposed law that would have imposed the death sentence for gay sex. Tanzania cracked down last year, arresting a dozen LGBT activists and advocates. People who call themselves “refugees” from both countries come to Nairobi to feel at least a bit more free.

Then again, Kenya’s vice president, William Ruto, has said there is “no room” for gays in Kenya. Ezekiel Mutua, who directs Kenya’s film board and decides what is permissible on television, went on an anti-gay rant on Facebook last month.

“No gay content will air on our screens under our watch. You can make all the noise to hell and back. I don’t care who is behind these groups,” Mutua wrote. “I have only one thing to say: You will not be allowed to destroy our children. Your foreign masters have ruined their countries, and they now want to use a few characters to introduce that filth here in Kenya.”

Disdain for LGBT people is widespread in Kenya. While openly gay sex workers encounter all sorts of threats, most LGBT Kenyans face a more quotidian repression from the concentric rings of family, church and society that see them as confused at best and at worst diseased or irredeemable. Although LGBT activists in Kenya largely accept that a change in the law would not immediately change society, they think it would be a turning point.

“Kenya would be seen as a real first for many,” said Neela Ghoshal, a researcher on LGBT rights at Human Rights Watch based in Nairobi. “South Africa has always been seen as the exception to the African rule on most fronts.”

Legal precedents have been set in Kenya against discrimination on the basis of sexuality. The National Gay and Lesbian Human Rights Commission had to fight in the courts for its right to name itself that, and its win two years ago was cited in judgments in Botswana and Uganda in similar cases. A court in Botswana is hearing a petition to scrap that country’s version of Section 162.

No such change will happen here, however, if Charles Kanjama, a lawyer for the Kenya Christian Professionals Forum, has his way. To him, the decriminalization of gay sex in Kenya would be a new form of “cultural imperialism.”

“We consider them as enemies of the natural family,” he said on a recent night in his downtown Nairobi office. “Luckily in Africa, we take comfort in the Christian truth, which is that God detests homosexuality. Living that way is living in error. To them I say: Repent, do not sin again, and you will be forgiven.”

As for the violence experienced by Kenyans who identify as LGBT, Kanjama said it was “unfortunate” and that he does not condone it.

Back on Tom Mboya Street, the Sunday congregation of Cosmopolitan Affirming Church had a different interpretation of the Gospel. The pews — really just a few rows of banquet hall chairs — were filled with gay men. A few familiar faces from the Sauna were there.

John Karare, a minister in training, led them in a call-and-response prayer.

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